## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI**
**MONDAY, THE 09TH DAY OF DECEMBER 2019 / 18TH AGRAHAYANA, 1941**
## **Crl.Rev.Pet.No.1238 OF 2019**
**AGAINST THE JUDGMENT IN CRA 149/2017 DATED 30-07-2019 OF COURT OF SESSION-II, MANJERI**
**AGAINST THE JUDGMENT IN ST NO.1/2016 DATED 29/06/2017 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II(FOREST OFFENCES) MANJERI**
## **REVISION PETITIONER/APPELLANT/ACCUSED:**
**HARIS AGED 40 YEARS S/O.ABU, ONAM VAYALIL HOUSE, VETTILAPPARA.P.O, AREACODE, ERNAD TALUK, MALAPPURAM DISTRICT**
**BY ADV. SRI.K.DILIP**
## **RESPONDENT/RESPONDENT/COMPLAINANT:**
**1 ANOOP SEBASTIAN S/O.DEVASIYA, KANAKKALIL HOUSE, VETTILAPPARA.P.O, AREACODE, ERNAD TALUK, MALAPPURAM DISTRICT**
**2 STATE OF KERALA REP BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA**
## **SRI C N PRABHAKARAN-SR PP**
**THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04.12.2019, THE COURT ON 09.12.2019 PASSED THE FOLLOWING:**
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## **R.NARAYANA PISHARADI, J**
************************ Crl.R.P.No.1238 of 2019 ---------------------------------------------Dated this the 9[th] day of December, 2019
## **O R D E R**
This revision petition is filed by the accused in the case S.T.No.01/2016 on the file of the Court of the Judicial First Class Magistrate-II (Forest Offences), Manjeri.
2. The trial court found the petitioner guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act') and convicted him thereunder and sentenced him to undergo simple imprisonment for a period of six months and to pay a fine of Rs.3,00,000/- and in default of payment of fine, to undergo simple imprisonment for a period of three months. The trial court also directed that, if the fine amount was realised, it shall be given to the complainant as compensation.
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3. The petitioner filed appeal before the Court of Session, Manjeri challenging the conviction entered against and the sentence imposed on him by the trial court. The appellate court confirmed the conviction of the petitioner under Section 138 of the Act but modified the sentence of imprisonment to imprisonment till the rising of the court. The appellate court confirmed the sentence of fine imposed on the petitioner as well as the direction made by the trial court to pay the amount of fine as compensation to the complainant. The concurrent findings of guilty and conviction entered against him by the courts below and the sentence imposed on him by the appellate court are challenged by the petitioner in this revision petition.
4. Heard learned counsel for the petitioner.
5. The case of the complainant was as follows: The complainant and the accused were friends and they were familiar to each other. The accused borrowed an amount of Rs.3,00,000/from the complainant on 16.09.2015 promising that he would repay the amount within two months. On 16.11.2015, the accused issued a cheque for Rs.3,00,000/- to the complainant in
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discharge of the liability. The complainant presented the cheque in the bank but it was dishonoured stating the reason “funds insufficient”. The complainant sent a notice to the accused by registered post demanding payment of the amount of the cheque. The notice was returned to the complainant as 'unclaimed'. The accused did not pay the amount.
6. During the trial of the case, the complainant got himself examined as PW1 and Exts.P1 to P5 documents were marked on his side. DW1 was examined and Ext.D1 was marked on the side of the accused.
7. When examined as PW1, the complainant gave evidence that the accused borrowed an amount of Rs.3,00,000/from him on 16.09.2015 on the condition that he would repay the amount within a period of two months. PW1 also gave evidence that the accused issued Ext.P1 cheque dated 16.11.2015 to him in discharge of the liability.
8. The plea of the accused was that a signed blank cheque was lost from his possession and it was misused by the complainant.
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9. In order to prove his case, the accused examined the Manager of the bank as DW1 and Ext.D1 was marked. DW1 gave evidence that the accused had given intimation to the bank that the cheque was lost from his possession. Ext.D1 is the certificate issued from the bank to that effect.
10. However, the evidence of DW1 or Ext.D1 document does not disclose the date on which the accused gave intimation to the bank regarding the loss of the cheque. The trial court as well as the appellate court have closely scrutinised the evidence of DW1 and found that his evidence does not disclose the date on which the accused gave intimation to the bank regarding the loss of the cheque.
11. A mere plea, that the cheque was lost from the possession of the accused and that he had given intimation to the bank regarding the loss of the cheque, is not sufficient. If that be sufficient, accused in all cases under Section 138 of the Act could conveniently escape from criminal liability by giving an intimation regarding loss of cheque to the bank, after the issuing of the cheque. What is crucial and important is the date on
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which intimation was given to the bank by the accused regarding the loss of the cheque. If the cheque was lost from the possession of the accused before the alleged date of issuing of the cheque and if intimation in that regard had been given to the bank immediately, the plea of the accused may be probable. Even in such cases, there is possibility that a cunning accused may give intimation to the bank that cheque was lost from his possession (without real loss of the cheque) and thereafter, issue cheque to another person.
12. In the instant case, when DW1 could not state the date on which the intimation given by the accused was received by the bank, the accused should have summoned from the bank the intimation/letter given by him to the bank. No such step was taken by the accused. In the absence of any evidence adduced by the accused to prove that even before the date 16.11.2015, he had given intimation to the bank regarding loss of the cheque, his plea cannot be accepted.
13. There are also other circumstances which indicate that the plea of the accused is not probable. If the accused had given
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intimation to the bank regarding loss of cheque before the date 16.11.2015, as per the evidence of DW1, the bank would have returned the cheque unpaid for the reason 'payment stopped by drawer'. Further, the accused has no explanation as to under what circumstances he had kept signed blank cheque in his possession and how or under what circumstances it was lost from his possession.
14. The accused had raised a contention before the trial court that the complainant had no financial capacity to lend an amount of Rs.3,00,000/-. The complainant gave evidence explaining the manner in which he collected an amount of Rs.3,00,000/- and gave it to the accused. He had given evidence that he was getting an income of Rs.1,150/- per day and that he had savings with him to the tune of Rs.2,00,000/- and that he raised an amount of Rs.1,00,000/- by pledging the gold ornaments of his wife. Of course, it is not usual that a person would pledge the gold ornaments of his wife to lend money to another person who is not a relative. However, in the instant case, the accused was in need of money for the treatment of his
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father who was ailing from heart disease. Moreover, when the accused has failed to raise a probable plea and when the presumption under Section 139 of the Act is in favour of the complainant, absence of any evidence produced by the complainant to prove his source of money is not relevant (See **Rohitbhai Jivanlal Patel v. State of Gujarat : AIR 2019 SC 1876)** .
15. Another contention raised by the accused before the trial court was that the notice sent by the complainant was not received by him. The complainant had sent notice to the accused by registered post. The accused has no case that the address shown on the cover containing the notice was incorrect. In such circumstances, the complainant is entitled to get the benefit of the presumption under Section 27 of the General Clauses Act, regarding the notice sent by him.
16. In the aforesaid circumstances, I find that there is no perversity or impropriety in the appreciation of evidence by the courts below. The conviction of the petitioner for the offence under Section 138 of the Act is only to be confirmed.
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17. The appellate court has shown maximum leniency in imposing sentence on the petitioner/accused. There is no sufficient ground to interfere with the sentence imposed on the petitioner by the appellate court.
18. In the result, the revision petition is dismissed. However, the petitioner is granted a period of two months from today to deposit the fine amount in the trial court.
(sd/-) **R.NARAYANA PISHARADI, JUDGE**
jsr
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## **APPENDIX**
## **PETITIONER'S EXHIBITS:**
## **ANNEXURE I**
**CERTIFIED COPY OF THE JUDGMENT IN JUDGMENT IN CRL.APPEAL NO.149/2017 ON THE FILE OF THE COURT OF SESSIONS, MANJERI DATED 30.07.2019**
## **ANNEXURE II**
**COPY OF THE JUDGMENT IN S.T.C.NO.1 OF 2016 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II, (FOREST OFFENCES), MANJERI DATED 29,06.2017**
**RESPONDENTS' EXHIBITS: NIL**
**TRUE COPY**
**PS TO JUDGE**
